by michael hureaux perez
Opponents of Sonia Sotomayor’s nomination claim to be fighting against the rise of an “activist court” – “which is what the ruling class of this country calls any court which occasionally intervenes on behalf of historically repressed peoples.” Such politicians are much more comfortable with jurists such as Chief Justice Roger B. Taney, who famously proclaimed that Blacks have no rights that a white man is bound to respect. The modern-day Taneys don’t have much tolerance for uppity Puerto Ricans, either.
Eshu’s blues: Media circus throws another temper tantrum over Sotomayor nomination
by michael hureaux perez
“The country is standing at an explosive crossroads regarding questions of race, class, and gender, both domestically and internationally.”
The current fuss over Sonia Sotomayor’s U.S. Supreme Court nomnation has much less to do with her philosophy of law as expressed in any decisions she may have been part of, than to a speech which contained a low-key discourse on race, class and gender oppression. The speech was delivered before a group of Latino law students at the University of California in Berkeley eight years ago. Sotomayor is being pilloried for speaking hypothetically about the role that personal experience can play in the life of a jurist. Reflecting on her own experience as a woman of Puerto Rican ancestry who came up in the South Bronx forty years ago, Sotomayor offered the following comment in the closing moments of her address:
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice (Sandra Day) O’Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases… I am not so sure I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a man who has never had that life.”
Sotomayor was speaking quite cautiously in defense of the idea that experiences of race, gender, and class can make one more sensitive to arbitrary or capricious effect within the constraints of the law. Her address at Berkeley was largely a response to her colleague Judge Miriam Cedarbaum, who apparently has often expressed guarded concerns about the potential effect of individual experience in interpretations of the law. Judge Cedarbaum, according to Sotomayor, has a deep and abiding concern about the need of judges to achieve a greater degree of fairness and integrity based upon what both woman call “the reason of law.” In her speech Sotomayor chose to ask whether it is possible to achieve such a goal in all, or even most, cases – which is a reasonable question for a legal mind to pursue. If Sotomayor’s question is rooted in racist theory, as the blogosphere is whining about right now, let it be said unequivocally that the Supreme Court has had far worse contaminants in its history.
“The late Chief Justice William Rehnquist was a great admirer of his predecessor Roger B. Taney, of the notorious Dred Scott decision.”
For example, the preceding Chief Justice of the United States, the late William Rehnquist, was a great admirer of his predecessor Roger B. Taney (he of the notorious Dred Scott decision). Everyone knows Taney said black people had no rights white people were bound to respect. Fewer folks know that Taney argued that way because he believed that the original framers of the Constitution never intended for the document to be “liberally” interpreted by succeeding generations. Taney, in denying Scott’s petition for freedom, was declaring his intent to embalm the Constitution, and Rehnquist, in his sojourn as Chief Justice of the Supreme Court, did his best to defend Taney’s contributions to a petrified philosophy of law and justice.
The common idea among Rehnquist and his disciples like Anton Scalia and Clarence Thomas is that they are defending us all from what they call an “activist” court, which is what the ruling class of this country calls any court which occasionally intervenes on behalf of historically repressed peoples. Sotomayor may well offer half of an attentive ear to such populations, and that can’t be tolerated. Hence all the pissing and moaning about her appointment at a moment when the country is standing at an explosive crossroads regarding questions of race, class, and gender, both domestically and internationally.
The funny unfunny part of all this is that nothing underscores Sotomayor’s concerns more precisely then the firestorm that her nomination has engendered. Here is a woman who rose from one of the toughest ghettos in the country to become a Yale law student and a nominee to the Supreme Court, someone who has met any “merit” criteria that the right wing geniuses of the “new federalism” would care to haul out. And yet a relatively innocuous statement she made about the impact of race, gender and class upon the common philosophy of the law is blown entirely out of proportion, and a woman who grew up around the racist destruction of the neighborhoods of the Bronx is reviled as a racist. Only in Amurrika.
“Obama suggested to the media that Sotomayor would no doubt have ‘re-spoken’ her words had she known they would cause such furor.”
Well, Sonia Sotomayor may not be a jurist who meets with some abstract legal standard overseen by big time oxycodeine dealers like Rush Limbaugh, but she declares that she wants to interrogate the racial and class based presumptions that continue to play a role in the interpretation of law. As one of my students informed me, Sotomayor did not claim that simply being Latina would make her a better judge than a white man. She implied – or hoped – that the experience of a Latina would grant such a judge broader insight into the workings of the law. Oh, the horror! How dast anyone insist on an institutionalization of nuance in what remains of the corporate justice system?
Meanwhile, Sotomayor’s so-called sponsor, Barack Obama continues to play his usual lukewarm role. The other day, Obama suggested to the media that Sotomayor would no doubt have “re-spoken” her words had she known they would cause such furor.
Unfortunately for President Phony, the actual meaning of Sotomayor’s words is crystal clear to anyone who has the gumption to look them up. Barack Obama could have defended the statement as a whole, and he chose not to, with one of his usual displays of spinelessness that come into play whenever the more rabid elements of the corporate right start barking. One would think a big, bad Harvard law professor could find the strength to energetically defend his choice of a candidate for a position that could be affecting lives into the next three decades. But as usual, the president is playing the Clinton card. Methinks I hear the rattling chains of the spirit of the Lani Guinier nomination.
In the meantime, the usual mediated fit that the more demented elements of late capitalist culture throw whenever they don’t get their way continues to drive the national discussion around the Sotomayor nomination – yea, verily, the circus has once again come to town. Ladies and gentlemen, in the center ring, the usual Sound and Fury, signifying nothing.
BAR columnist michael hureaux perez is a writer, musician and teacher who lives in southwest Seattle, Washington. He is a longtime contributor to small and alternative presses around the country and performs his work frequently. Email to: tricksterbirdboy@yahoo.com.
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